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Articles on Wisconsin legal history

Wisconsin's fight for fugitive slaves: The Booth case

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

In 1850 Congress passed the Fugitive Slave Act, which required northerners to help slave owners recapture runaway slaves. The Act set off waves of protest in the north, which deeply resented being forced to support a system it hated. In 1854, in the case of In re Booth, Wisconsin Supreme Court Justice Abram Smith of Milwaukee alone against the rest of the United States and struck down the law. Smith was a hero to many, but his decision set off a political controversy which kept Wisconsin in constant turmoil up to the eve of the Civil War.

Joshua Glover, a Missouri slave, escaped from his master in the early 1850s and fled to Racine . He lived quietly there for several years until federal officials discovered him in early 1854 and tried to return him south. Sherman Booth of Waukesha was the leader of Wisconsin's abolitionists. When Booth heard of Glover's arrest, he rallied a crowd which rushed the jail, set Glover free and helped him escape to Canada. Federal officials then arrested Booth.

Booth hired a young Milwaukee lawyer, Byron Paine, to defend him. Paine had a very difficult task: the Fugitive Slave Act had been challenged many times before and had been upheld by all courts, including the U.S. Supreme Court. But Paine tried a new argument -- state's rights. He argued that Wisconsin did not have to follow other states, or even the U.S. Supreme Court. If it did not want to enforce the Act it did not have to.

Paine realized that the South had invented the states rights doctrine to resist efforts to restrict slavery. He recognized that "difficulties and conflicts," including anarchy and secession, might result if every state did what it wanted. But Paine believed America was at a crisis. "Storm is not so fatal as stagnation," he reasoned, and it was better than "federal tyranny and usurpation."

To everyone's surprise, Paine persuaded Justice Smith to adopt states rights and set Booth free. Smith realized the gravity of what he was doing but he was willing to risk the consequences, even war. Said Smith:

[The Act] is a wicked and cruel enactment. Let the federal government return to the exercise of the just powers conferred by the Constitution and few, very few, will be found to disturb the tranquillity of the nation. But until this is done, I solemnly believe that there will be no peace for the state or the nation, but that agitation, acrimony and hostility will mark our progress, even if we escape a more dread calamity, which I will not even mention.

Smith's colleagues on the Supreme Court later backed his decision although one justice, Samuel Crawford, dissented. Crawford agreed with Edward Ryan, a Milwaukee lawyer who would later join the state Supreme Court, who had defended the law against Paine. Ryan cautioned that while bad laws could be changed, courts who encouraged defiance would do permanent damage to the ideal of equal and impartial justice. Said Ryan:

If the Constitution of the United States is to give way to elementary criticisms and decision of the State authorities, it is not difficult to foresee most grave and disastrous results. If the compromises of the Constitution be thus practically nullified, the Constitution cannot be sustained. And the system which, with all its inherited evils and all its own sins, is still the political hope of all mankind, may be led step by step into dissension, disruption and civil warfare, to gratify the consciences of those who trusting nothing to concession, nothing to time, nothing to Providence, would destroy everything imperfect, in a world in which nothing is perfect.

Southerners criticized Wisconsin bitterly as "the youngest of our states, who got rotten before she was ripe." But many northerners across the United States praised Paine and Smith. For five years after Smith's decision, Paine and the states rights movement carried all before them. States rights became the dominant issue in Wisconsin politics. Justice Crawford, of New Diggings , lost his seat in 1855 because he had refused to join Smith. In 1857 the Legislature passed a law forbidding Wisconsin officials to enforce the Act, and in 1859 Wisconsin voters rewarded Byron Paine by elevating him to the Wisconsin Supreme Court. The Booth case was one of the first signals to Americans that the old compromises over slavery which had held the nation together were falling apart and that war was on the way.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.